


C(?>2>sWv^niO 



.3v:s!V'>;'ft.X,- "• '(\'>,-^<; 



E American Hous 
OF Lords 



SUPREME COURT USURPATION 



MORRISON I. SWIFT 



PRICE 5 CENTS 

BY Ma!L 6 CENTS 



PUBLISHED BY 

THE SUPREME COURT REFORM LEAGUE 

aodress, back bay p. o station 
BOSTON 

191 ! 



The American House of Lords 

,^^ SUPREME COURT USURPATION 
By Morrison I. Swift 



It is not the name that constitutes an institution, but what 
that institution does. The two functions of the British Lords 
which have led to the popular revolt against that body are the for- 
tification of private privilege and the nullification of the people's 
will. While the American House of Lords is a somewhat different 
creation from its British prototype, and more elusive through its 
complexity, it performs the same functions even more perfectly. It 
is a composite body, formed of the Senate and the Supreme Court. 
Each of these branches possesses veto power over legislation, for 
the Senate can prevent legislation, while the Supreme Court can 
pronounce it unconstitutional. In England the Lords, by protect- 
ing a number of ancient privileges and defeating modern laws, 
render it impossible for the people to obtain their rights : in Amer- 
ica the Lords are busy establishing equivalent privileges for a fa- 
vored class and are thus building up that class into permanence. 
In this country we are retrograding by doing what the democracy 
of England is undoing. 

Looking about for the most vulnerable part of the Government 
the rich man readily perceived it to be the Senate, which he pro- 
ceeded to capture. It is a small body with a six-year term of office, 
election to which is by a method exceedingly susceptible to pur- 
chase and influence. A seat in the Senate is easily bought without 
the evidences of purchase. The rich man merely contributes fundis 
to elect members of the state legislature, a stainless act ; what more 
natural than that they should gratefully remember his kindness 
and elect him United States Senator afterwards ? 

The Senate's complexion tells the result. Twenty-one of the 
senators are very conservatively estimated to be worth an aggregate 
of $337,000,000, the ten richest of them owning $185,000,000 of it. 
Of the rest a number of fortunes pass the million dollar line, and 
all or nearly all the others stand high in the grade of ^Vell off.'' 

1 



Senator Flint, of California, gave as bis reason for witlidrawal 
from political life liis inability to afford tbe $50,000 to $75,000 
tbat tbe senatorial campaign for re-election would cost bim, yet 
Flint is supposed to be worth $500,000. If a senator is ricb enongb 
to elect bimself be can be relied on to devote bimself to tbe ricb in- 
terests; but if no sucb senator is in the field these interests know 
the game well enough to provide funds to elect men expressly to 
take care of their affairs in tbe upper chamber. 

It thus happens that the Senate represents wealth vastly out 
of proportion to the total of individual senators' holdings. The 
very ricb senators represent all tbe wealth of all those interested 
in the same commercial operations that they are. Aldrich is a 
Standard Oil connection, Oliver belongs to Pittsburg Steel, Elkins 
was a sentinel of railroads and mines, Du Pont is in gunpowder, 
a member of tbe great concern tbat sells powder to the Glovernment, 
Guggenheim is in tbe Senate from tbe Principality of Guggenheim, 
seven brothers whose smelters and absorptions of silver, copper, 
gold, coal and real estate in the States, British Columbia and 
Alaska are believed to bear a value of $500,000,000. Practically 
all fields of wealth are in one or another way represented by sena- 
tors. Some are lawyers who made their money working for the 
corporations and trusts. 

It is impossible to suppose tbat such a collection of men work 
for the people's good; at least they do so only in tbe Piclvwicldan 
sense in which President Baer as viceroy of Providence works for 
tbe benefit of the coal miners. Inevitably, while so composed, tbe 
Senate is a class chamber openly or surreptitiously opposed to pop- 
ular welfare. 

Wbile senatorial election by direct popular vote, in favor of 
which many States huve already declared, would improve tbe situ- 
ation, it would not be a remedy; wealthy men would still enjoy an 
immense advantage in the race because money is so powerful a 
factor in all elections, including those of persons elected directly 
by tbe people. Although direct election may cost tbe senator much 
more than indirect, what does tbe possible difference amount to for 
our very rich men? It has no significance when weighed against 
tbe value to ricb men of keeping tbe Senate in their possession; 
so tbat while a few poor men may be introduced by the change 
the body as a whole will remain a ricb men's conclave. 

Besides there are other evils inberent in tbe Senate's author- 
ity which render it a fit instrument for greedy interests. It divides 



mm 



15:3 



and dissipates responsibility for legislation as two chambers always 
do, opening the way to all sorts of legislative crookedness. Where 
responsibility for laws can not be traced and definitely located so 
that the evil doers can be held to strict account, the people have no 
safeguard and the predatory powers can get what they want. This 
will continue so while two legislative branches exist. One of them 
can always allege that the other thwarted its purpose — how are the 
people to know the real state of the ease? The intricate interplay 
of the two houses, the complexity of the legislative machinery, 
leave them in irremediable confusion. 

Moreover, the existence of two chambers diminishes the dignity 
of both and deprives their members of stimulus to do good work, 
representatives know that their efforts will be tinkered and doctored 
if not emasculated by the Senate, why therefore expend labor 
merely to see it quashed? Under these circumstances statesmen 
cannot be produced, nor will men much above mediocrity go to 
Congress to wear out their forces in useless attrition. 

The real remedy is alteration of the Senate into^ a consultive 
body without power to retard or prevent legislation or to enforce 
changes in it, leaving all actual enactment of laws to the House of 
Representatives. Instead of lessening the Senate's dignity, it« 
prestige would thereby be greatly enhanced, for not only would its 
function be a paramount one but men of several grades higher 
caliber than now serve in it would then gladly do so. Their func- 
tion would be primarily preparation of the best possible legislation 
and its recommendation to the House for passage, and since the 
sole path to honor and distinction for the senators would lie 
through the perfection of the legislation devised and its advantage 
to the people, their work would be in the highest degree disinter- 
ested and would invite the highest type of men. The public would 
listen to the advice of such a group and would hold the House 
sharply accountable for disregarding its counsel except for still 
more intelligent and public spirited reasons. Thus the House 
would be put on its mettle, bringing out its best powers, elevating 
it in public esteem and drawing to it men much superior to its 
present personnel. 

To this extent the evils of divided legislative responsibility 
would be overcome. Various cities have already taken this course 
to cure the same mischief. They have discarded the bicameral idea 
by abolishing one branch, or even both, of the city legislature to 
focalize responsibility. It is difficult to see why the national Gov- 



eminent, suffering from similar calamities from the same cause, 
should adhere to an archaic machinery which the cities are reject- 
ing as unworkable. 

But we have to face another encroachment in the same field, 
namely that of the Supreme Court. It is curious how the myth of 
the separation of the powers of government — executive, legislative 
and judicial — ^has imposed on us, and startling what havoc it works. 
The Supreme Court has gone over into the field of legislation and 
made itself the leading legislative power under the guise of merely 
judging. Lines of possible legislative action are limited in num^- 
ber : grant one body authority to command another what not to do, 
and it is really empowered to order what it shall do. Such is the 
attitude assumed toward Congress by the Supreme Court, which in 
all great matters guides, coerces and drives Congress by a series of 
prohibitions. By building the banks of a river you determine the 
path of its flow. The right of continuous exercise of the veto on 
legislation is nothing less than shaping the channel in which all 
legislation must flow, 

t^The theory reposed on to justify this is that the Court in so 
acting is merely adjudicating between two laws, one higher (the 
constitution), the other lower (the statute), to preserve the lower 
from infringing on the higher. But it remains that whatever 
power exercises this discrimination is legislative. A perusal of 
Supreme Court interpretations will show that in most of them, 
with the same or greater fidelity to the constitution, other decisions 
might have been made; that in nearly all Supreme Court rulings 
involving the constitution there is either a choice between two or 
more equally constitutional courses, or that the Court elected the 
less rational and constitutional line. There is a broad belt of 
permissive interpretation, and within this belt all decisions are very 
distinctly legislative. It covers much of the most important field 
of lawmaking. The almost constant disagreement of the supreme 
justices among themselves is unquestionable proof of this, matters 
of the utmost national moment sometimes being settled by a ma- 
jority of one in that Court, a nearly equal minority holding the 
majority decree to be unconstitutional. This division cancels the 
virtue of the Court and points to the truth that probably both 
courses are constitutional, and that it is a matter for the legislature 
and not the Court to decide; or it indicates that many of the 
Court's decisions are in point of fact unconstitutional, and exhibits 
the Court as an incompetent constitutional guide. 



But the Court, not only by grave mistakes but by reversing 
itself, has gone even farther than this in proving that its decrees 
are the mere fallible opinions and even; legalized guesses of a group 
of lawyers^ emanating from no superior insight into the constitu- 
tion. In 1870 by a vote of 5 to 3 the Court declared an act of Con- 
gress invalid; in 1871 the Court reversed itself on this decision; 
in 1884 it confirmed this reversal, thereby again annulling its orig- 
inal decision of 1870, by a vote of 8 to 1. Eight out of nine jus- 
tices here declared that the Supreme Caurt had interpreted the 
constitution unconstitutionally/ in 1870. What reason is there to 
think that most of its interpretations are not similarly unconstitu- 
tional, undeclared so because the judges do not become wise enough 
to see it, or, perhaps, are not honest or courageous enough to ad- 
mit it ? 

Now since constitutional interpretation is a paramount func- 
tion, being the highest and most vital legislation, nothing equals 
the importance of the choice of the body to whom this function 
shall be entrusted ; accident is the last thing that should govern its 
choice; and since the nature of the interpretation made will de- 
pend on the psychology of the interpreter, it is this psychology that 
must determine the selection. rUpon most points the constitution 
is formless and inchoate, so that a declaration of what it is, while 
alleged to be interpretation of a fixed reality, is in fact pure inven- 
tion and creation. Whether their principle of decision is legality 
or public welfare, the judges therefore in truth merely utter them- 
selves and yoke their personal dicta on to the people as funda- 
mental law. ^The problem then, is whether nine judges are wiser 
than^the_Jiation or not. Were they the wisest nine men in the 
world would they be fit for this task?^ 

They arel hardly the wisest. Mostly trust-practice graduates, 
or lawyers who have grown up under the Court fetish of the sanc^ 
tity of wealth against man, selected by political motive, affiliated 
by all ties with regnant wealth, unelected, irrecallable, unimpeach- 
able, remote as the birds of the air from the people, accustomed 
by legal habit to consider the misty many a mob whose erratic pro- 
clivities judges are ordained to restrain, and to regard the prevail- 
ing few as the nation's weight and worth, they are the least quali- 
fied of all citizens to manufacture the nation's constitution. 

Where these judges profess to adjudicate constitutional ques- 
tions upon rigidly legal principles, since the field of choice open is 
so wide, their selection is ultimately determined by the kind of 

6 



doctrine they personally believe to be best to rivet upon the people ; 
so when analyzed to the bottom it is the personal psychic bias of 
these judges which decides what they will pronounce to be the con- 
stitution, or, in plain words, what constitution they will create. 
And that personal bias is by no means always shaped by their con- 
viction of what is public well-being, but often by their instinct of 
what will most benefit the social class to which by self-interest 
they belong. 

This shows us that while the supreme judges are the least 
competent to interpret the constitution, the people alone are equal 
to that function. A democracy in which the people do not decide 
the meaning of their fundamental instruments is but a form and 
a sham. They may not exercise that highest of offices directly, but 
if for convenience they do so indirectly it must be through a body 
over which they have full and swift control, one accurately reflect- 
ing them, elected directly and often by them, recallable at all times 
by them. No government organ answers even partially to these de- 
mands except the House of Representatives. 

It is a function, then, to be operated through the 
House because by frequent early expiration of a Congressman's 
term he most of all public men can be made responsive to public 
will, and because the supreme judge, immune from popular 
authority by freedom from election and by life-tenure, can almost 
as intelligently legislate for Mars as for the earth. But the ascrip- 
tion of fitness for this purpose to the House is but a relative truth 
until that body is made the single responsible representative cham- 
ber. 

To describe the Supreme Court as I have done is to say that 
a body elaborately specialized to do one kind of work is naturally 
pre-eminently unfitted to do a cardinally different kind of work, 
calling for another form of ability and training. The judges, 
devoid of laAvful sanction or constructive discipline for legislation, 
have usurped the legislative office. A good lawmaker must place 
popular well-being first, must have a large mental grasp of the 
principles that will advance it, and must be able to contrive meas- 
ures for its achievement. Has the supreme judge these attributes? 
Trained to burrow through mountains of past and decayed de- 
cisions, to tinker with moribund precedents, to reach an end only 
through labored carpentering of second-hand and ill-fitting material, 
Ms originative faculty is atrophied or killed. By the law of his 
office as judge he inust declare that in construing the constitution 



he only applies and adjusts existing laws, the constitution 
being primary, the statutes secondary, and that he banishes 
all considerations of popular well-being as extra-judicial and irrele- 
vant. In so doing he strips himself of the first attribute of a good 
legislator, and thus denuded he proceeds to act as the supreme 
legislator. Wliether he takes himself seriously in this, and legis- 
lates under the hallucination that he is judging, or not, he will 
legislate viciously. 

Another unpalatable truth follows. The high-sounding maxim 
of the Supreme Court that this is a government of laws, not of 
men, because the Court can invalidate unconstitutional acts of 
Congress, is seen to be a mere myth. Yet there is no plea on 
which the Court more constantly relies to keep the people quiescent 
under its stream of vetoes of their progressive legislation, than on 
this empty fiction. Supreme Court power to negative laws dis- 
tasteful to theories of the constitution spun from the Court's own 
bowels makes this a government of men, not of laws. The men are 
the nine judges. They do not seem averse to men being the su- 
preme rulers of the United States, if behind the mask of the con- 
stitution they are the men. 

And this brings us to a fact of great consequence. The con- 
stitution confers no authority on the Supreme Court to exercise the 
function of interpreter. Nowhere in the constitution is the Court 
empowered to annul statutes which it deems unconstitutional. The 
power belongs to it purely by appropriation, which is only saying 
that it does not belong to it at all. It will not do in explanation 
of its omission to say that it is an implied or intended power, or, 
as Mr. Bryce does, that it is "a duty rather than a power," because 
the writers of the constitution enumerated with extreme explicit- 
ness the duties of that Court, and to argue that they omitted alto- "^ 
gether the most important one or left it to inference is to nullify 
the value of the document as a guide. If the constitution said 
nothing about the President's veto, thereby evidently granting him 
none, would it be his inferential duty to exercise an absolute veto 
at his discretion? The cases are parallel. Because the constitu- 
tion by silence expressly withholds the veto power over legislation 
from the Supreme Court, the Court has decided that in so doing 
the constitution grants it an absolute veto._ 

There is another proof, quite conclusive in itself, that the Su- 
preme Court has acquired this office not by constitutional right but 
by bald assumption of it, which is that neither the earlier Presi- 

7 



dents Bor Congresses conceded it. Mr, Bryce says in "Tte Ameri- 
can Commonwealth" (i,375) that "at one time the Presidents 
claimed the much wider right of being, except in questions of pure 
private law, generally and prima facie entitled to interpret the con- 
stitution for themselves, and to act on their own interpretation, 
even when it ran counter to that delivered by the Supreme Court . . . 
Majorities in Congress have more than once claimed for them- 
selves the same independence." Their later recession from this 
position shows nothing more than that the Supreme Court pre- 
vailed against general conviction in establishing a habit. 

\Hamilton himself, an ardent advocate of reposing this power 
in the judges, is reduced to the extremity of arguing that the con- 
stitution does so because "it is not to be collected from any par- 
ticular provisions in the constitution" that the power is located 
elsewhere. (Federalist, No. 78). Hamilton's defective perspicacity 
on this subject is seen from his declaration that "the judiciary is, 
beyond comparison, the weakest of the three departments of 
power," and his quoting Montesquieu that "of the three powers 
above mentioned, the Judiciary is next to nothing." To us it has 
become clear that whatever body controls the absolute veto is the 
sovereign government force. \ 

It is now one of the commonplaces of the subject that the 
Supreme Court, by its use of interpretation and veto, is continually 
constructing a new constitution. That is to say it is making laws, 
ajid laws that are the most fundamental. Having arrogated this 
power it retains it by the pure fiction that it is merely compelling 
the statutes to subordinate themselves to a fixed and self-evident 
constitution. The self -evidence always coincides with the way the 
Court is minded to look at it. 

The practical outcome of this power at the present time is this. 
An economic process is in full swing by which a few are absorbing 
the great mass of the nation's wealth, reducing the general popula- 
tion to a state of dependence that is practical pauperism. When a 
State attempts effective measures to stem the process, the Supreme 
Court applies its veto either on the ground that the State has 
usurped a Federal function or that its act is confiscatory ; when the 
Federal Government undertakes the same thing, its acts are an- 
nulled by the Court as either confiscatory or infringements on the 
constitutional rights of the States. Nine men, wholly without con- 
stitutional or legal authority to act in the case, are handing over 

8 



the nation's wealth to a few persons whose only final claim to it is 
the personal opinion of these nine men, with all that this means in 
either permanent popular servitude or revolution. 

These nine legal gentlemen may act under the honest convic- 
tion that a few persons should own the country. The questions 
then are how did they get such subversive convictions, and how did 
they reach a post where they could invert the principles of democ- 
racy and apply their deforming doctrines to life? The cQnspicu- 
ous lawyers become so by defending corporations; the foundation 
of such defence is that corporations have a right without limit to 
everything they can get; thus the convictions of judges are formed, 
for it is usually these conspicuous lawyers that are promoted to the 
high judgeships. Their ascension to the Supreme Bench is through 
the door of the body that represents concentrated wealth, the Sen- 
ate. jSTo appointee of the President to the Supreme Bench can 
occupy that office unless confirmed by the Senate, a fact that influ- 
ences the President in his selections. Moreover, the senators use 
their weight with him directly to have judges of their complexion 
named, and scandals have sometimes ensued from the subsequent 
relation of these senators to the Supreme Court which they helped 
to form. By this process the Supreme Court can be stacked with 
justices holding oligarchic and plutocratic convictions. 

The opinion of five of these justices determines the Court's 
decision. It thus happens that the destiny of a nation of ninety 
millions is chiseled by the mental temper of five practically irre- 
sponsible men. The people have no control over them. They are 
as free from responsibility as an absolute autocrat, for while he 
governs despotically according to his psychic bias, they mold the 
governing constitution autocratically according to their psychic 
bias. Executive, Senators, and Eepresentatives, are responsible be- 
cause their tenure of office dies; these five sovereigns hold office 
during good behavior, M^hich always means for life, which elevates 
them above influence from any popular source, and surrenders 
them to the untrammeled control of their own preferences. To 
efface democracy and achieve a constitutional plutocracy without 
a perceptible revolutionary ripple, the rich who seat themselves in 
the Senate need only secure the appointment of five supreme judges 
with the proper bent of mind for their purpose and the work is 
done. 

r Since the Supreme Court veto on legislation is an usurped 
right, no change in the constitution is required to deprive the 



Court of its use. Congress may simply refuse to recognize Court 
annulment of its acts, or, this failing, may deprive the Court of 
jurisdiction over all cases where the constitution is involved. In 
view of the people's submission to the Court's unlawful claim to 
supremacy over Congress, it would seem as if the constitution itself 
could have been read through attentively by very few people since 
its adoption. There is a clause in it which says: "In all cases 
affecting ambassadors, other public ministers, and consuls, and 
those in which a State shall be party, the Supreme Court shall 
have original jurisdiction. In all the other cases before-mentioned 
the Supreme Court shall have appellate jurisdiction both as to law 
and fact, with such exceptions a-nd under such regulations as the 
Congress shall make." (Art. Ill, Sect. 2, Par. 2.) 

This constitutionally empowers Congress to expel the Supreme 
Court from nearly the whole field it now claims to control exclu- 
sively by direct and absolute constitutional mandate. It can rele- 
gate the Court to impotence by a vote. The framers ordained it so 
in language too lucid for even the subtlest legal mind to pervert. 
If this power is not congressional supremacy over the Court there 
could be none. The keen framers of the instrument said in it to 
Congress, "If the Court arrogates power, cut down its jurisdiction 
to check it."'' It could not in the same breath say to the Court, 
"-^'If Congress" passes laws which you think unconstitutional, veto 
them" ; for these two utterances cancel each other and stultify the 
document. And if, in the face of the quoted clause, the Court can 
extort the dogma of its supremacy from, the "spirit of the consti- 
tution," it can also declare an act of Congress curtailing its juris- 
diction in express accordance with the constitution, null and void, 
thereby reducing the constitution to a farce. 

That this question should be brought to an early issue is indi- 
cated by a current circumstance of great moment. A new method 
of curtailing the powers of Congress by means of the judiciary is 
now being contrived by trust attorneys. Hitherto the judicial 
process has been wherever possible to declare Congress constitu- 
tionally prohibited from lines of action destructive of the abso- 
lutism of wealth. But even this emasculation is insufficient, for 
there remain some powers conferred on Congress in words so plain 
that they cannot be questioned, and these must be undermined. It 
is to be done by judicial attack on the moiive of Congress in their 
exercise. This will enable the Supreme Court to veto any act 
ivhatever of Congress, for the right to veto will rest on the mere 

10 



opinion of the Court tliat the motive prompting the act was im- 
proper. This further and final Court usurpation of legislative 
function will, if consummated, be the logical climax of its pro- 
gressive absorption of the governing power. 

James M. Beck, who is a legal adviser of the Trusts, defines 
and defends this new expansion of judicial power in a late "Har- 
vard Law Eeview," in the following way : 

"The very serious question suggests itself as to whether it is 
reasonably possible for the judiciary to determine whether a Fed- 
eral power has been exercised for a Federal end or for some ulterior 
purpose. Undoubtedly this task, if ever assumed by the judiciary, 
would be even more delicate and embarrassing than the ordinary 
exercise of the power of adjudging a statute unconstitutional. . . . 
N'evertheless, unless onr dual system of government [State and 
Federal] is to be subverted the Supreme Court must return to the 
doctrine of Marshall that '^should Congress, under the pretext of 
exercising its powers, pass laws for the accomplishment of objects 
not entrusted to the Government, it would become the painful duty 
of this tribunal .... to say that such an act was not the law of 
the land.' 

"To this conclusion, it is the belief of the writer, the Court 
will, indeed must, come." 

Marshall, in making over the constitution according to his 
personal fancies and desires, laid down the above proposition. It 
now proves to be an invention which, if established, will render the 
aggregations of wealth impregnable. 

In depriving the Supreme Court of its unconstitutional veto, it 
might be wise for Congress to experimentally endow the Court by 
statute with a temporary veto of one year from the time of its 
passage, upon such legislation as it should deem unconstitutional, 
in order to give its legal criticisms time to be weighed, when if re- 
enacted it should become law. Provided the Senate were made a 
consultive body as proposed, the delay of final passage might per- 
haps be advantageously extended until after the election of the 
next House, when the people would have registered their mandate 
on the subject by their votes. In this way every re-election of the 
House would become an interpretation of the constitution by the 
people themselves. All that is believed good in Court action would 
then be retained and submitted to a fair trial. 

11 



u 



With the vetoes of the Senate and Court banished, the prime 
end of making the House a responsible legislative body would be 
attained. A House thus closely connected with the people could 
be controlled by the free use of the referendum, initiative and re- 
call. It would then be possible for the first time under the Amer- 
ican system to test the virtue of genuine democratic representative 
government. Greater success would be probable if half of the con- 
sultive Senate were elected from the nation at large by the propor- 
tional method of voting. A body containing men of eminent 
genius to construct measures of the greatest benefit to the public 
would thus be obtained, while the Supreme Court would furnish 
expert advice on the strictly legal aspects of laws. 

With these instruments the best forces of the nation would be 
brought into play, and the intelligent will of the people, relieved 
of archaic, perverting and irrational artifices to impede it, would 
achieve its ends with reasonable speed, fulfilling the true purposes 
of a democracy. 



